SOUTHERN UTAH WILDERNESS ALLIANCE

190 IBLA 152 Decided May 17, 2017

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals 801 N. St., Suite 300

Arlington, VA 22203

703-235-3750 703-235-8349 (fax)

SOUTHERN UTAH WILDERNESS ALLIANCE

2015-7 Decided May 17, 2017

Appeal an August 27, 2014, decision issued by the Deputy State Director, Utah State Office, Bureau of Land Management (BLM) dismissing a request for State Director Review of a July 15, 2014, decision issued by the BLM's Vernal Field Office approving an application for suspension of operations and production oil and gas leases on public lands in Utah.

Affirmed; motions to dismiss denied; motion to strike denied.

1. Oil and Gas Suspensions

Under BLM's regulations governing oil and gas operations at 43 C.F.R. Subparts 3100 and 3160, any party adversely affected by a BLM decision to approve or deny a request for a suspension of operations and production must seek State Director review of that decision. Such decision is not directly appealable to the Board.

2. Administrative Standing

An individual or organization has standing i f i t is a "party to a case" and is "adversely affected" by the decision i t seeks to challenge. The "party to a case" requirement is satisfied when the individual or organization has participated in the process leading to the decision i t seeks to challenge. A party is adversely affected when it demonstrates that i t has a legally cognizable interest that is or is substantially likely to be injured by the decision. While an adverse effect need not be certain, standing wi l l only be recognized where the threat of injury is real and immediate.

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3. Administrative Procedure: Oil and Gas Leases: Suspensions

An organization does not demonstrate i t is adversely-affected by a BLM decision approving a suspension of operations and production when the injuries i t alleges wi l l result from future development of the suspended leases, which wi l l occur only after BLM approves an application for a permit to drill . Because the injuries complained of are contingent upon some future occurrence and are merely hypothetical, there is no adverse effect and the organization does not have standing.

APPEARANCES: Stephen H.M. Esq., and Landon Newell, Esq., Salt Lake City, Utah, for Southern Utah Wilderness William E. Sparks, Esq., Bret A. Sumner, Esq., and Malinda Morain, Esq., Denver, Colorado, for Wapiti Energy, LLC, Wapiti Oil & Gas I I , LLC, and Wapiti Operating, LLC; James Karkut, Esq., U.S. Department of the Interior, Office of the Regional Solicitor, Salt Lake City, Utah, for the Bureau of Land Management.

OPINION BY ADMINISTRATIVE JUDGE

Southern Utah Wilderness Alliance (SUWA) has appealed from a decision issued by the Deputy State Director of the Bureau of Land Management's (BLM) Utah State Office, dated August 27, 2014. In that decision, the Deputy State Director dismissed SUWA's request for State Director Review (SDR) of the Vernal Field Office's July 15, 2014, decision approving Wapiti Operating, LLC's (Wapiti) request for suspension of operations and production for oil and gas leases committed to the Deseret Unit in Duchesne and Uintah Counties, Utah. The Deputy State Director dismissed SUWA's request for SDR because he concluded that the organization did not have standing to seek SDR.

SUMMARY

A BLM decision to approve or deny an application for a suspension of operations and production is governed by the regulations in both 43 C.F.R. Parts 3100 and 3160. While BLM decisions made pursuant to its authority in Part 3100 are generally appealable directly to the Board, BLM decisions made pursuant to its authority in Part 3160 instead are first subject to State Director Review before appeal to the Board. Because the regulations in Part 3160 require BLM to "act on" applications for suspensions of operations and production, such action is subject to State Director Review. Moreover, requiring State Director

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Review of decisions approving or denying applications for suspension of operations and production has been the long-standing practice of the Department. Here, SUWA properly sought State Director Review of BLM's decision.

In order to have standing to seek State Director Review of a decision on a request for a suspension of operations and production, an organization must demonstrate that i t is an adversely affected party. An adverse effect is shown when the organization demonstrates i t has a legally cognizable interest that is or is substantially likely to be injured by the decision. While an adverse effect need not be certain, standing wi l l only be recognized where the threat of injury is real and immediate. Here, SUWA alleges that its legally cognizable interests in the lands and resources subject to BLM's decision wi l l be injured by future development of the suspended leases. Since future development can only occur after approval of an application for a permit to dril l , however, the adverse effect complained of by SUWA is contingent upon some future occurrence and is merely hypothetical. This is insufficient to demonstrate standing.

We therefore deny Wapiti's motion to dismiss on the basis that SUWA improperly sought state director review, and affirm the Deputy State Director's decision dismissing SUWA's request for State Director Review for lack of standing.

BACKGROUND BLM's Decisions Granting Wapiti's And

Dismissing Request for SDR

Wapiti applied to BLM's Vernal Field Office for a suspension of operations and production (SOP) for certain of its Federal oil and gas leases committed to the Deseret Unit in June of In its application, Wapiti explained that the leases were scheduled to expire in September of that year, and although an application for a permit to dri l l (APD) the unit obligation well had been submitted to BLM in November of 2013, the bureau had not yet acted on that application.2 Wapiti sought an SOP to preserve its leases "until a reasonable period of time following the approval" of its APD.3

In a letter to BLM's Vernal Field Office, dated July 1, 2014, SUWA submitted comments and objections to Wapiti's suspension request. SUWA

Request for Suspension of Operation and Productions, June 17, 2014. Id. at unpaginated (unp.) 1. Id.

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stated that Wapiti's application should be denied because i t did not comply with BLM guidance requiring thorough documentation for any suspension request and because Wapiti did not actually submit its APD until June of

SUWA sent a second letter to BLM the next day, supplementing its objections and comments.5

On July 15, 2014, BLM approved Wapiti's request for an SOP. In that decision, BLM stated i t would not be able to make a decision on Wapiti's APD for several months, after BLM completed its environmental analysis. BLM approved Wapiti's SOP "based on the anticipated processing time of the submitted APD," effective June 1, 2014, and terminating 90 days after BLM notified Wapiti of its decision on the APD.6 BLM's decision provided that Wapiti could appeal its decision to the State Director in accordance with the SDR regulation at 43 C.F.R. § 3165.3(b). 7

SUWA then sought SDR of BLM's decision. SUWA argued that Wapiti's inability to begin drilling operations before its leases expired was due to Wapiti's "own inactivity or delay," and not BLM's delay in processing the APD.8 SUWA also alleged that BLM's approval of the SOP violated the National Environmental Policy Act (NEPA),9 because the bureau did not prepare either an environmental assessment or an environmental impact statement prior to approving the SOP.10 SUWA further stated that the State Director should set aside the Vernal Field Office's decision because Wapiti's application was not supported by sufficient information.11

Wapiti filed an opposition to SUWA's request for SDR, arguing, among other things, that SUWA lacked standing to seek SDR. Wapiti stated that SUWA's request for SDR, and the accompanying declaration of Ray Utah Field Director for SUWA, failed to "establish how granting lease suspensions for the Leases wi l l actually impact a legally cognizable interest to any SUWA member."12 Wapiti stated:

Letter from SUWA to BLM, Vernal Field Office, dated July 1, 2014. Letter from SUWA to BLM, Vernal Field Office, dated July 2, 2014. SOP Decision at unp. 2. Id. SDR Request at unp. 4 42 §§ 4321-4370h (2012). SDR Request at unp. 9. Id. at unp. 9-10. Wapiti Opposition at 3.

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I f an[d] when BLM approves any surface disturbing activity, SUWA wil l have the full and fair opportunity to participate in that process, including the right to file any administrative or other legal challenge to such activity. However, the administrative act of suspending operations and production on the Leases does not harm any particularized SUWA

In the decision now on appeal, the BLM Deputy State Director dismissed SUWA's request for SDR for lack of standing, concluding that "SUWA has not demonstrated that i t has a legally cognizable interest that is adversely affected by the decision."14 Specifically, the Deputy State Director determined that the Ray Bloxham declaration made allegations that were "too general and speculative" to support the organization's standing.15

SUWA timely appealed the Deputy State Director's decision to the Board and filed a statement of reasons (SOR). We granted Wapiti's motion to intervene, and Wapiti filed an answer and motion to dismiss. Wapiti argues that under BLM's regulations, decisions granting SOPs are appealable only directly to the Board, and SUWA therefore erroneously sought SDR of BLM's decision.16 Wapiti further argues that SUWA lacked standing to seek SDR and lacks standing to appeal the State Director's decision to this Board.17 BLM filed an answer, adopting and incorporating by reference the bulk of Wapiti's pleading.18 BLM later filed a modification to its answer stating that BLM now disagrees with Wapiti's position that SDR is not available for SOP decisions.19

Id. SDR Decision at 1. Id. Wapiti Answer and Motion to Dismiss at 2, 3-6. Id. 2, 6-11 BLM Answer. BLM Modification at 2 (explaining that based on counsel's "review of the legal

authority cited in the relevant portion of SUWA's February 10, 2015, reply brief, and subsequent research and internal discussions on the subject, BLM has concluded that a party that wishes to challenge a BLM decision to grant a suspension of operations and production under an oil and gas lease, issued pursuant to 43 C.F.R. § 3165.1(b), has the right pursuant to 43 C.F.R. § 3165.3(b) to request SDR review of the decision, and must first request SDR of the decision").

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DISCUSSION

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Two issues are raised in this appeal. The first issue is whether SUWA properly sought SDR under BLM's regulations governing oil and gas operations. The second issue is whether SUWA had standing to seek SDR of BLM's decision.

Before addressing these two issues, we first resolve Wapiti's motion to dismiss for lack of standing SUWA's appeal to this Board of the State Director's decision on SDR. We deny this motion because SUWA meets the requirements for establishing standing before the Board: SUWA was the named party in the decision on appeal, and was adversely affected by the State Director's decision not to adjudicate its request for SDR of BLM's decision.20

SUWA Properly Sought SDR: SDR Must Be Requested To Challenge A BLM Decision Approving Or Denying

A Request For Suspension of Operations And Production

1. The Governing SDR

BLM's regulations addressing suspension of oil and gas operations and production are found in two parts within BLM's minerals management regulations that are relevant to this appeal: 43 C.F.R. Part 3100 (Oil and Gas Leasing) and 43 C.F.R. Part 3160 (Onshore Oil and Gas Operations).

Under 43 C.F.R. § 3103.4-4 in Part 3100, BLM may grant an SOP "in cases where the lessee is prevented from operating on the lease or producing from the lease, despite the exercise of due care and diligence, by reason of force majeure, that is, by matters beyond the reasonable control of the lessee."21 The regulations specify that when BLM grants an SOP, the lease term is extended by the period of the suspension, and, during the suspension, rental and minimum royalty payments are suspended.22 The regulations further state that a suspension takes effect as of the time specified in BLM's decision, "in accordance with the provisions of § 3165.1 of this t i t le."2 3

The regulations in Part 3160 also address SOPs. Section 3165.1 in Part 3160, referenced in section 3103.4-4, provides that an application for suspension

43 C.F.R. § 4.410. 43 C.F.R. § 3103.4-4(a). Id. § 3103.4-4(b), (d). Id. § 3103.4-4(c).

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of operations and production shall be filed with the authorized the authorized officer shall act on such application; and, i f approved, the SOP wil l be effective on the first of the month in which the completed application was filed or on a date specified by the authorized officer.24 That regulation specifies that the application filed with, and acted on by the authorized officer, is an application "filed pursuant to § 3103.4-4 . . .

I t is also in Part 3160, at 43 C.F.R. § 3165.3, where the provision for State Director Review is located. That regulation provides that "[a]ny adversely affected party that contests a . . . decision of the authorized officer issued under the regulations in this part, may request an administrative review, before the State Director, either with or without oral presentation."26 The regulation at 43 C.F.R. § 3165.4(a) then provides for appeal of the SDR decision to this Board.

2. The SDR Process Applies to SOP Decisions

The answer to the question of whether SDR is applicable to BLM decisions on requests for a suspension of operations and production is potentially complicated by the fact that SOPs are addressed by the regulations in both Parts 3100 and 3160, and decisions occurring under the authority of each of these Parts may be subject to different appeal procedures. Decisions made under the authority of the regulations in Parts 3000 and 3100 are generally appealable directly to this Board. The regulation at 43 C.F.R. § 3000.4 provides that "any party adversely affected by a decision of the authorized officer made pursuant to the provisions of Group 3000 or Group 3100 of this title shall have a right of appeal pursuant to part 4 of this title," which in turn provides for direct appeal to the Board. In contrast, as directed by 43 C.F.R. §§ 3165.3 and 3165.4, decisions made under the authority of Part 3160 are subject to the SDR process and subsequent appeal of the SDR decision to the Board. This is recognized in section 3000.4, which specifically identifies decisions made under the authority of 43 C.F.R. § 3165.4 as an exception to the general rule that BLM oil and gas decisions are directly appealable to the Board.

Relying on the language in section 3000.4, Wapiti argues that SDR is not available for BLM decisions approving or disapproving an SOP.27 Wapiti states that because a decision approving an SOP occurs under the authority of 43

Id. 3165.1(a), (b), (c). Id. § 3165.1(b). Id. § 3165.3(b). Wapiti Answer/Motion to Dismiss at 4.

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C.F.R. § 3103.4-4, i t is therefore only subject to direct appeal to the Board, in accordance with 43 C.F.R. § 3000.4. 28 Moreover, Wapiti notes that the regulations under Part 3160 expressly l imit the SDR process to decisions made under that Part.29 In support of its position, Wapiti cites to an unpublished order issued by the Board in which we affirmed a BLM decision dismissing a request for SDR of a decision extending oil and gas leases issued under the authority of 43 C.F.R. Part In that order, we stated that because the decision at issue concerned the continuation of leases, which is governed by the regulations in Subpart 3107, the decision was "appealable directly to the Board under Subpart 3107 and not subject to SDR."31

In its reply, SUWA argues to the contrary - i.e., that i t properly sought SDR of BLM's decision under the regulations. SUWA states that the regulation at 43 C.F.R. § 3165.1(b) "incorporates by reference" the SOP regulations contained in 43 C.F.R. § 3103.4-4. 32 SUWA points to the language in section 3165.1(b) that specifically authorizes BLM to "act on applications submitted for a suspension of operations or production, or both, filed pursuant to § 3103.4-4 of this In support of its position, SUWA states that "[t]he Board has regularly confirmed a party's ability to seek SDR regarding a decision approving or denying a request for suspension of operation and/or production made pursuant to 43 C.F.R. § 3103.4-4, and then, i f necessary, to seek review of an adverse SDR decision."34 And SUWA further notes that BLM's decision in this case specifically directed any adversely affected party to seek SDR under 43 C.F.R. § 3165.3.(b). 35

We agree with SUWA and conclude that the regulations require an adversely affected party to seek SDR of a BLM decision approving or denying an

Id. ("It is pursuant to 43 C.F.R. § 3103.4-4 that BLM may grant a suspension of operations and production for federal oil and gas leases. Unlike Part 3160, the regulations in Part 3100 do not provide for SDR.").

Id. (citing 43 C.F.R. § 3165.3(b)). See Natural Resources Defense Council, IBLA 2012-72 (May 1, 2013) Id. at 3. Reply 2. Id. (emphasis added). Id. at 2-3 (citing Savoy Energy, L.P., 178 IBLA 313, 317 (2010); William C.

Kirkwood, 175 IBLA 292, 295 (2008); Harvey E. Yates Co., 156 IBLA 100, 103 (2001); River Gas Corp., 149 IBLA 239 (1999)).

Id. at 3 n.2.

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SOP. Such decisions are therefore not directly appealable to this Board. We reach this conclusion based on several considerations.

Significantly, as SUWA states, the regulation at section 3165.1(b) directs that the authorized officer "shall act" on applications filed under section 3103.4-4. This places BLM actions on SOP requests squarely within the authority of the Part 3160 regulations, which require SDR prior to any appeal to the Board.36 The fact that section 3103.4-4 provides authority for BLM to direct or consent to an SOP does not negate the effect of the language in section 3165.1(b).

Historically, the Department's practice has been to require an adversely affected party to first request review by the State Director of an SOP decision. Indeed, before the Department consolidated all onshore oil and gas management with BLM, the United States Geological Survey (USGS) (followed for a brief period by the Minerals Management Service) was exclusively responsible for approving and supervising onshore oil and gas lease operations.37 And the applicable regulations provided that "applications for suspension of operations and production shall be filed in the office of the Regional Oil and Gas Supervisor of the Geological Survey (not in the land office of the BLM)" since i t was USGS that approved "applications for suspension of operations or production or both, filed pursuant to 43 CFR 3103.3-8 [now, § 3103.4-4]." Any aggrieved party could then seek review by the USGS Director,38 and the Director's decision was appealable to this Board.39 In 1983, the Department consolidated its non-royalty responsibilities related to the approval and supervision of operations on onshore

43 C.F.R. 3165.3. See Secretarial Order no. 2948 (Geological Survey . . . determines the actions

to be taken by [lessees] from the stand-point of the development, conservation, and management of mineral resources under the jurisdiction of the Department. . . . After issuance and during the exploration, development, and production phases of leases, permits, and licenses, and until a lease, permit, or license has terminated (at which time management is the sole responsibility of BLM) the Geological Survey is the sole representative of the Secretary in all matters relating to the supervision of operations. . . . The Bureau of Land Management refers to the Geological Survey all other type applications received, which, i f approved, may affect operations on existing permits, leases, or licenses.").

30 C.F.R. §§ 221.70 through 221.73 (1980); see Inexco Oil Co., 45 IBLA 377, 383 (1980).

Mesa Petroleum Co., 44 IBLA 165 (1979); Richard P. 39 IBLA 1 (1979); B. Ferguson, 23 IBLA 29 (1975).

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Federal oil and gas leases within BLM and simply re-designated the regulations in effect at that time as 43 C.F.R. Part 3160.40

Moreover, our conclusion is consistent with Board precedent, where we have, in numerous instances, ruled on appeals of SDR decisions related to SOPs.41 Although these appeals did not raise the precise issue we address here, they all acknowledge that under BLM's regulations, an adversely affected party seeking to challenge an SOP decision must request SDR. For example, in Black Hills Plateau Production, LLC,42 we affirmed a BLM decision dismissing a request for SDR on the basis that the request was untimely under the regulations. In reaching our determination, we relied upon the requirement in 43 C.F.R. § 3165.3(b) to file a request for SDR within 20 business days of the date the decision was received.43 We stated: "Black Hills was responsible for filing its SDR request by the deadline imposed by 43 C.F.R. § 3165.3(b) . . .

In Pitkin County, we concluded that appellants lacked standing to appeal BLM SDR decisions granting SOPs. There, we described how the regulation at 43 C.F.R. § 3165.4(a) provides that a party adversely affected by a State Director after State Director Review may appeal that decision to the Board.45 And in Harvey Yates Co., where we affirmed a BLM SDR decision denying an application for a retroactive SOP for expired leases, we described "pursuit of a suspension under 43 CFR [§] 3165.1(b)" as a way for a lessee to protect itself from lease expiration.46 In these cases, and others, the Board has confirmed that the requirement for SDR under 43 C.F.R. Part 3160 applies to decisions relating to SOPs.

Wapiti's interpretation of the regulations is too constrained and does not account for the specific reference to section 3103.4-4 in section 3165.1(b) or the Department's long-standing practice and regulatory framework for oil and gas

48 Fed. Reg. 36582 (Aug. 12, 1983). See, e.g., Wilderness Workshop, 221 (2017); Black Hills Plateau

Production, LLC, 188 IBLA 368 (2016); Board of County Commissioners of Pitkin County, Colorado, 186 IBLA 288, 304 (2015), recon. denied, 187 IBLA 328 (2016) {Pitkin County); Savoy Energy, L.P, 178 IBLA 313, 317 (2010); Kirkwood, 175 IBLA 292, 295 (2008); William C. E. Yates Co., 156 IBLA 100, 103 (2001); Southern Utah Wilderness Alliance, 148 IBLA 117 (1999).

188 IBLA at 371. Id. Id. 186 IBLA at 296. 156 IBLA 100, 106 (2001).

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operations. Nor does Wapiti cite to any binding precedent in support of its position. Wapiti cites only to the unpublished order issued by the Board in which we found that a BLM decision to extend oil and gas leases under the authority of 43 C.F.R. Subpart 3107 was not subject to SDR since decisions under Subpart 3107 are to be appealed directly to the Board under 43 C.F.R.

But that unpublished order is not binding precedent.48 More important, however, that case involved a BLM decision under the regulations governing lease extensions, found in 43 C.F.R. Subpart 3107. And unlike decisions involving SOPs, there is no reference in Part to lease extension decisions made under Subpart 3107. Consequently, an appeal of a lease extension decision is to be taken directly to the Board, as directed by section 3000.4. Our conclusion here is entirely consistent with our order in that case.

We therefore conclude that SUWA properly sought SDR of BLM's decision granting Wapiti's SOP, and we deny Wapiti's motion to dismiss SUWA's appeal for failing to appeal BLM's decision directly to the Board.

SUWA Lacked Standing to Seek SDR: SUWA Did Not Demonstrate It Was Adversely Affected by BLM's Decision

We turn now to the question of whether the Deputy State Director properly dismissed SUWA's request for SDR for lack of standing.

1. The Requirement to Demonstrate Standing

[2] BLM's regulations governing the SDR process provide that only an "adversely affected party" may request such review.49 The regulations do not provide definitions for "adversely affected" or "party," but the Board's regulations on standing do. Under those regulations, an appellant can appeal a decision - i.e., has standing - i f i t demonstrates that i t is both a "party to a case" and "adversely affected" by the decision.50 I f an appellant does not demonstrate that i t is both a party and adversely affected, i t does not have standing.51

See Natural Resources Defense Council, IBLA 2012-72 at 3. See Chris Onstad (On Remand), 189 IBLA 194, 198 (2017); Pitkin County,

186 IBLA at 304 (citing Colorado Environmental Coalition, 173 IBLA 362, 369 (2008)).

43 C.F.R. § 3165.3(b). Id. § 4.410(a). See, e.g., Cascadia Wildlands, 188 IBLA 7, 9 (2016); Western Watersheds

Project, 185 IBLA 293, 298 (2015).

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The regulations further specify that an appellant is a "party to a case" i f i t has taken action that is the subject of the decision on appeal, is the object of that decision, or has otherwise participated in the process leading to the decision on appeal.52 The second element of standing, "adverse effect," is demonstrated when a party to the case has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest.53

Board precedent further illuminates how an appellant can demonstrate adverse effect. First, we have repeatedly held that a legally cognizable interest can include cultural, recreational, and aesthetic use and enjoyment of public lands.54 We have also explained that in order to demonstrate adverse effect, an appellant must make colorable allegations, supported by specific facts set forth in an affidavit, declaration, or other statement, that establish a causal relationship between the approved action and alleged injury to a legally cognizable interest.55 Accordingly, when an organization seeks to establish standing through its members, as SUWA does in this case, i t must demonstrate that one or more of its members has a legally cognizable interest in their own right, coinciding with the organization's purposes, that is or is substantially likely to be injured by the approved

The information provided to support standing must as much specific evidence as possible about what interests are allegedly injured and what the connections are between those interests and the decision [the organization] seeks to And while an appellant need not prove that an adverse effect wi l l , in fact, occur as a result of the approved action, the threat of injury and its effect on the appellant must be more than hypothetical.58 As we have stated: "Standing wi l l only be recognized where the threat of injury is real and

Id. § 4.410(b). Id. § 4.410(d). See, e.g., Cascadia Wildlands, 188 IBLA at 9-10; Western Watersheds Project,

187 IBLA at 321; Western Watersheds Project v. BLM, 182 IBLA 1, 7 (2012). Cascadia Wildlands, 188 IBLA at 10 (citing Native Ecosystems Council, 185

IBLA 268, 273 (2015); The Fund for Animals, Inc., 163 IBLA 172, 176 (2004); Payne, 159 IBLA 69, 73 (2003)).

Id. (citing Western Watersheds Project, 187 IBLA at 320 (quoting Wildlands Defense, 187 IBLA 233, 236 (2016))).

Id. (quoting Western Watersheds Project v. BLM, 182 IBLA at 6). Pitkin County, 186 IBLA at 297; Laramie Energy 182 IBLA 317, 325

(2012); Powder River Basin Resource Council, 180 IBLA 32, 45 (2010).

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immediate."59 "[M]ere speculation that an injury might occur in the future wi l l not suffice."60

2. We Agree With The State Director That SUWA Did Not Demonstrate That It Was Adversely Affected By BLM's Decision Approving the SOP

Here, the Deputy State Director concluded that SUWA lacked standing because "[a]ssuming that SUWA is a party to the case, SUWA has not demonstrated that i t has a legally cognizable interest that is adversely affected by the decision."61 He reviewed the declaration of Mr. Bloxham, submitted by SUWA in support of its request for SDR, and determined that the allegations of harm were "too general and speculative" to establish SUWA's standing.62 In particular, the Deputy State Director found inadequate Mr. Bloxham's statement that his "health, recreational, spiritual, educational, aesthetic, and other interests wi l l be directly affected and irreparably harmed by the BLM's decision to approve Wapiti's lease suspensions request."63

On appeal, SUWA argues that i t had standing to seek SDR of BLM's decision approving Wapiti's SOP because i t has shown that one or more of its members use the public lands subject to BLM's decision and that such use would be harmed by potential oil and gas operations.64 SUWA takes issue with the Deputy State Director's decision, stating that i t cites to only a single sentence in Mr. Bloxham's declaration, and failed to take into account other statements made by Mr. Bloxham including that he has visited, and intends to return, to the lands subject to BLM's decision; he uses the lands for "health, recreational, spiritual, educational, and aesthetic purposes"; and these interests wi l l be harmed by the "threat of surface disturbing activities" resulting from BLM's decision approving the SOP.65

In addition, to support its arguments on standing SUWA submitted two supplemental declarations of Mr. Bloxham. SUWA submitted the first

Pitkin County, 186 IBLA at 297; see also Powder River Basin Resource Council, 180 IBLA at 45. Colorado Open Space Council, 109 IBLA at 280; Powder River Basin Resource

Council, 180 IBLA at 45. SDR Decision at 1. Id. Id. Id. at 8.

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supplemental declaration with its appeal to the in that declaration, Mr. Bloxham elaborates on the alleged injuries BLM's SOP decision wi l l have to his interests.66 For example, Mr. Bloxham states that oil and gas exploration and development wi l l adversely affect air quality, which wil l affect his health; inhibit and l imit his recreational opportunities in the area,' and harm his aesthetic interest and enjoyment in viewing the "wilderness caliber landscape."67 Two years after i t filed its appeal, SUWA filed a "Notice" with the Board, submitting a second supplemental declaration of Mr. Bloxham, which SUWA states "bolsters [its] standing to pursue this . . In that declaration, Mr. Bloxham describes his work related to various efforts aimed at protecting the wilderness characteristics of lands in Utah.

BLM and Wapiti argue that SUWA lacked standing to seek SDR of BLM's decision because SUWA has not demonstrated that suspension of the leases "will actually impact a legally cognizable interest to any SUWA member."69 Rather, they state that SUWA's pleading and declaration show only a "disagreement and generalized concern with oil and gas development in the Uinta Basin," which is insufficient to demonstrate that SUWA is or wi l l be adversely affected by BLM's decision.70 And Wapiti and BLM further argue that Mr. Bloxham's declaration does not identify any concrete or particularized injury from the lease suspensions since suspensions "simply extendD existing oil and gas leases and actually D the Leases' They state that SUWA lacks standing because the injuries described by Mr. Bloxham are those that would occur as a result of oil and gas development, which "is entirely contingent upon a separate action by BLM: the approval of an APD."7 2

As explained below, we conclude that SUWA does not demonstrate that i t is adversely affected by BLM's SOP decision and therefore lacks standing. We agree with SUWA that i t has demonstrated legally cognizable interests in the

Supplemental Declaration of Ray Bloxham, dated Nov. 14, 2014.

Id. 8-10, unp. 2-3. Notice - Second Supplemental Declaration of Ray Bloxham, dated Oct. 17,

2016). Wapiti Answer at 8. Id. at 8 (citing Wyoming Outdoor Council, 153 IBLA 379, 382 (2000)). Id. Id. at see id. at 10 ("The issue of standing in this case revolves around the

contingent nature of SUWA's asserted harm and the fact that the challenged Decision is not the agency decision that permits SUWA's harm to be real or imminent.").

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lands and resources subject to the SOP through Mr. Bloxham's statements describing his use of the lands and resources.73 But SUWA fails to demonstrate that BLM's approval of Wapiti's SOP has caused or wi l l cause any injury to those interests.

[3] SUWA is concerned about the impacts of development and alleges that without the suspension, the leases would expire and thus assure that no future development wi l l occur. But BLM's approval of the suspension does not result in any "real and immediate" harm because development is not now occurring and wi l l only occur in the future i f BLM approves Wapiti's APD.7 4 At this point in time, SUWA is merely speculating that an injury might occur in the future, and this is insufficient to demonstrate a causal link between BLM's decision and any injury to SUWA's interests.75

Our determination here is consistent wi th Board precedent. For example, in Board of County Commissioners of Pitkin County, Colorado (Pitkin County), a recent decision also involving a challenge to a BLM decision approving an SOP, we concluded that the appellants lacked standing because any injury from development of the suspended leases was "future, contingent, and hypothetical."76 There, appellants included local governments and environmental organizations that alleged similar harms to those alleged in this case by SUWA: The suspension would lead to development, which would cause impacts to various resources and to the local governments' economies. In our decision, we discussed standing at length, explaining that "we have uniformly recognized the principle that the harm complained of must be more than hypothetical; i t must be and We held that because the ultimate status of the leases subject to the suspension was "speculative and unknown, . . . the threat of injury and its effect on Appellants is future, contingent, and hypothetical."78 We thus concluded appellants lacked standing.

In Pitkin County, we also discussed this Board's decision in Colorado Open Space There, we held that appellants lacked standing to

See Declaration of Ray Bloxham, dated Aug. 11, 2014, 6 at unp. 3; Supplemental Declaration of Ray Bloxham, dated Nov. 14, 2014.

Pitkin County, 186 IBLA at 297. See Colorado Open Space Council, 109 IBLA at 280. Pitkin County, 186 IBLA at 304. Id. at 300 (quoting Laramie Energy II, Inc., 182 IBLA at 325). Id. 304. 109 IBLA 274 (1989).

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challenge a BLM decision approving a unit operator's request for suspension of automatic elimination provisions of the governing unit agreement. Appellants had alleged that the suspension injured their ability to enjoy the lands subject to the suspension their pristine state and work for their designation as

We held appellants were not adversely affected by the suspension and therefore lacked standing. We stated that appellants' fears that the suspension would ultimately result in the destruction of wilderness characteristics was speculative, which is insufficient to demonstrate standing:

To the extent that appellants are attempting to premise standing on the right to be free from the fear that development may, at some future point, occur, they are not alleging a "concrete injury," but rather attempting to vindicate an abstract interest. To the extent, however, that appellants are basing their challenge on the likelihood of physical impairment of the wilderness characteristics, the possible injury cannot fairly "be traced to the challenged action," since . . . the decision being appealed has a neutral, i f not beneficial effect, on actual

The parallels between the facts of SUWA's appeal and the facts in Pitkin County and Colorado Open Space Council, as well as other Board cases, are evident. Here, as in those cases, any injuries to SUWA's interests would occur from future development of the suspended leases. But such injury is not "real and immediate" since development is contingent on future events - i.e., BLM's approval of Wapiti's APD.8 2 As such, even though BLM's grant of the SOP means that the leases do not expire and development is not now foreclosed, there is no causal relationship between BLM's decision and the injuries alleged by SUWA.83 As we have stated: " I f the adverse impact complained contingent upon some future occurrence' or 'is merely hypothetical, i t is premature for this Board to decide the

SUWA points to the same unpublished order issued by the Board in Natural Resources Defense Wapiti cites to in support of its position

Id. at 278, quoting appellants' SOR. Id. at 286. See Pitkin County, 186 IBLA at 297; Laramie Energy 182 IBLA at

325. See Pitkin County, 186 IBLA at 297. Laramie Energy 182 IBLA at 326 (quoting Nevada Outdoor

Recreation Association, 158 IBLA 207, 209-10 (2003)).

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that SUWA erroneously sought SDR of BLM's decision. SUWA, however, relies on the order to support its argument that it has standing. SUWA states that we should reach the same result in this case that we did in Natural Resources Defense Council, where we found that environmental groups were adversely affected by lease extensions.85 In our order, we relied on our decision in Three Forks Ranch, Inc., where we found adverse effects from a BLM decision expanding the Focus Ranch Uni t . 8 6

These cases, however, are distinguishable on their facts and do not involve what is at issue here - BLM's decision approving an SOP. First, as we already noted, because our order in Natural Resources Defense Council is unpublished, i t does not constitute binding precedent. But in any event, and as we explained in Pitkin County, the operator in Natural Resources Defense Council requested lease extensions to facilitate well development planned to begin in six months.87

As such, and unlike an SOP, the adverse effects from the extensions were not contingent on future events.88 Similarly, in Three Forks Ranch, Inc., the result of the unit expansion was "that wells may be drilled immediately on lands owned or used by a working interest owner."89 This, too, is unlike an SOP, where future action (approval of an APD) is required before development, and any injuries that flow from such development, can occur.

Because BLM's approval of Wapiti's SOP does not result in any injury to SUWA's legally cognizable interests, SUWA has not demonstrated that i t is adversely affected by BLM's decision. SUWA therefore lacked standing and the Deputy State Director properly dismissed SUWA's request for SDR.

CONCLUSION

We conclude that SUWA properly sought SDR of BLM's decision approving Wapiti's SOP, but failed to demonstrate an adverse effect sufficient to establish standing to seek SDR of that decision.

BLM has asked that we deny SUWA's attempt to file Mr. Bloxham's second supplemental declaration, and Wapiti has filed a motion to strike this

IBLA 2012-72 (May 1, 2013) at 3. Three Forks Ranch, Inc., 171 IBLA at 325. 1 Id. Id. 304.

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second supplemental declaration. Because these declarations do not affect the disposition of this appeal, we deny BLM's request and Wapiti's motion to strike.

Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,90 we affirm BLM's decision dismissing SUWA's request for SDR for lack of standing. We deny in part and deny as moot in part Wapiti's and BLM's motion to dismiss.

I concur:

43 C.F.R. § 4.1.

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